President Bush is abandoning a plan that could have further reduced wetlands protections even though his administration has said their occasional use by farmers, migratory birds or endangered species isn't reason enough to stop developers from filling them in.
Mike Leavitt, the new administrator of the Environmental Protection Agency, said Tuesday that Bush personally made the decision "not to issue a rule that could reduce" further wetlands protections under the Clean Water Act.
Filter value recognized
Leavitt said the administration wants to avoid "a contentious and lengthy rulemaking debate" over disputed environmental benefits or losses by putting into force advisory guidelines issued in January.
The administration recognizes the ecological value of remaining wetlands that function as "nature's kidneys" by filtering pollutants, Leavitt said, explaining Bush's decision to drop a formal rulemaking process since then.
The Supreme Court ruled in 2001 in a Chicago-area case that isolated ponds and mudflats should not be afforded Clean Water Act protections if only to provide habitat for migratory birds.
The EPA and the Army Corps of Engineers issued the January guidelines for carrying out the court's decision. Environmentalists said those guidelines went beyond the court ruling by adding "endangered species" and "crop irrigation" as insufficient grounds for protecting wetlands, isolated streams, ponds and marshes that don't cross state lines.
At the same time, the administration began crafting new regulations specifically to exclude isolated ponds and streams, many of them dry for part of the year, as protected wetlands under the law.
Chandler Morse, a policy analyst for the National Association of Home Builders, said the guidelines have created even more inconsistency and unpredictability on whether developers must get permits from the Corps of Engineers before filling isolated wetlands.
"Not moving ahead with the rulemaking is going to leave the problems around," he said. "There just isn't a lot of information on what this all means."
Last month, 218 House members, including 26 Republicans, independent Rep. Bernie Sanders of Vermont and all but 14 of the House's 205 Democrats, signed a letter to Bush urging him to scrap what they called an attempt "to remove federal protection from waters ... that have been covered by the Clean Water Act for decades."
Tracy Mehan, who oversees the EPA Office of Water, said the Supreme Court's decision and guidelines implementing it have had little impact on wetlands so far.
EPA has estimated that as much one-fifth of the current 100 million acres of wetlands in the United States, a full 20 million acres, could be considered isolated. Other Bush administration officials have put that figure at as low as 45,000 acres.
"We're happy that they've decided not to go forward," said Malia Hale, a water policy specialist at the National Wildlife Federation. "However, the (January) guidance still stands out there."
Roger Rufe, President of The Ocean Conservancy, agreed. “Loss of wetlands has been a critical factor in the declining health of many of our most productive bays and estuaries," he stated. "We thank the EPA and the Corps for this announcement but ask them for another: full protection of our nation’s waters.”
The group urged the EPA to rescind the January guidelines. "Until this is done," it stated, "an estimated 20 percent of the nation’s wetlands ... are left without federal protection and the oceans will suffer as a result."